Steve Israel: Court to rule on patchwork fracking policies

You can not underestimate the importance of New York's highest court deciding, once and for all, whether communities can ban fracking.

Steve Israel

You can not underestimate the importance of New York's highest court deciding, once and for all, whether communities can ban fracking.

The ruling could determine the future of the natural gas extraction method of hydraulic fracturing, or fracking, in New York.

Two lower courts had ruled that the upstate towns of Dryden and Middlefield could ban gas drilling by zoning out heavy industrial activities like fracking. Two energy companies — first Anschutz, then Norse — joined a dairy farmer in arguing that since the state permits and regulates drilling, municipalities can't completely ban it.

The New York State Court of Appeals' recent decision to hear the appeal will be the industry's last chance to overturn those rulings.

If the court upholds the bans, fracking might be finished in much of New York — at least in our slice of the state.

Take Sullivan County, which sits on the gas-rich Marcellus shale. If the bans stand, drilling won't be allowed in the five towns that already banned it — Bethel, Forestburgh, Highland, Lumberland and Tusten. Meanwhile, two Sullivan towns — Fremont and Delaware — have passed resolutions supporting drilling.

Even the gas industry admits that such regulatory uncertainty would wreak havoc on its plans for drilling.

Would a gas company commit resources to one town that allows drilling when neighboring towns have banned it — especially when the gas company might have to use the roads or water of the town that's banned it to get to the town that allows it?

The head of the state's Independent Oil and Gas Industry Association of New York says such bans would hinder the economic development fracking could bring.

"Local bans on oil and gas exploration violate New York's Environmental Conservation Law and create patchwork public policy and a level of regulatory uncertainty that discourages business development," said IOGA executive director Brad Gill.

Waiting for the Appeals Court decision also gives Gov. Andrew Cuomo another reason to hold off on deciding whether to allow drilling.

Both he and Department of Environmental Conservation Commissioner Joe Martens have repeatedly said that how towns feel about fracking matters.

"I think it's inarguable that one should take into consideration home rule, and if you have communities that have an expressed desire to proceed, I think that should be taken into consideration if you decide to go down this road at all," Cuomo said more than a year ago. "Obviously, if a community says that they oppose it, that should be taken into consideration."

So sure, both sides will continue the fight, regardless of the ruling. If the right to ban is upheld, pro-frackers will say their mineral rights have been taken away. If the bans are overturned, anti-frackers will surely continue to crusade for a statewide ban.

But that Court of Appeals ruling will go a long way in doing what Cuomo has been afraid to do — decide the future of fracking in New York.